Why Mediate?
- Mediation gives you control of your future.
- Mediation costs significantly less than litigation.
- Mediation provides better outcomes than you'll get in court.
- Mediation takes less time than litigation.
- Mediation provides security for the future.
- Mediation is private and confidential.
- Mediation works.
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1. Mediation gives the parties ultimate control over the outcome of their dispute, which in turn lets them decide their own futures.
As a practicing attorney and former district judge, I can not think of a worse place than a courtroom to resolve a dispute. By choosing litigation over mediation, parties to a dispute relinquish any decision-making rights they have regarding its outcome. In the context of a divorce, this loss of control includes the parties' very futures and the manner in which they will co-parent their children after the divorce is "final". I say "final" because, given litigation's inherently hostile nature, all too often the emotional part of the divorce can and does linger for many years after a judge has signed the final decree. Litigation is frustrating. It's costly and time consuming. To make matters worse, attorneys speak a language that is unfamiliar to those outside the legal community. As vexing as all of this can be, it pales in comparison to the parties' loss of control over the ultimate outcome of their dispute. Our community is probably no different from any other . . . we have many fine judges who do their best to render fair decisions. Unfortunately, a judge or jury is going to hear only a small fraction of the "whole story" that comprises any dispute. Given the time constraints placed upon our courts, it is difficult if not impossible for any judge or jury to arrive at a decision that seems fair to the litigants. Mediation empowers the parties with the resources to make their own decisions and control their own destinies . . . instead of having it done for them by total strangers. Because mediation is designed to allow parties to communicate openly in an effort to explore alternatives best suited to their own needs, it is an inherently fairer method of dispute resolution than litigation. A judge may arrive at a wise and fair decision. It may even be the best solution that could have been reached under the circumstances. In the final analysis however, the parties to a dispute are much better suited to decide its outcome than any third party ever will be.
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2. Mediation costs significantly less than litigation.
Litigation is expensive. Although the nature and complexity of the dispute controls the legal cost, it is not unusual to see five and even six figure attorney fees in just about any type of contested case.
The rise in popularity of courtroom television programs has undoubtedly also caused a misconception of how the legal system really works. As a judge I presided over cases ranging from murder to complex civil litigation to contested family law matters dealing with just about every factual and legal situation you can think of. The shortest jury trial I heard lasted two days; the longest took two weeks. Even a bench trial, where only the judge hears the evidence and renders a final decision without a jury, can take many days to conclude.
As long as the trial itself can last, the time it takes for attorneys to prepare for your day(s) in court will take much longer. Between pre-trial discovery and a seemingly endless number of pre-trial motions that can be brought before the court, it is not unusual for an attorney to devote three hours or more on ancillary matters for every one hour actually spent trying the case.
The bottom line: If you have a relatively "simple" matter that will require "only" a three day trial, chances are that your attorney will have at least 90 hours in the case by the time it's over. And this does not include costs of court, deposition costs, the attorney's expenses or the cost of expert witnesses. Add it all up and even a "low budget" trial will easily cost $15,000 and up per party. This are just the direct costs associated with going to court. After adding on the "opportunity cost" of litigation . . . the time spent away from your business or professional practice, this figure could easily double. |
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3. Through the use of a skilled third party neutral, the mediator, the parties have the opportunity to fully explain their positions and explore alternatives for mutual benefit.
Litigation constrains the parties' ability to communicate on a meaningful basis. There may be an issue of critical importance that must be addressed in order to reach a mutual understanding as to the best way to resolve the dispute, but for whatever reason the issue is prevented from being presented to the judge or jury. Even if the ultimate decision reached by a judge or jury is fair, it's safe to assume that neither party will perceive it as such if they were not permitted to confront and work through the problem that got them to court in the first place. If either party questions the fairness of the decision there may never be true closure, which in the context of a divorce or business dispute could cause the underlying problems to linger for many years to come.
Mediation on the other hand provides the parties with an opportunity to discuss and explore all facets of their dispute in the hope that a "win-win" result can be achieved. Although the mediation session will focus on resolving issues to the benefit of all parties concerned, the mediator only controls the process of the discussions, never the content. That is left strictly up to the parties. Simply put, you know the issues relevant to your disagreement a lot better than anyone else does. A basic tenet of mediation is that, to the extent practical, parties should be allowed to work through the problems that caused the dispute in the first place. Only through an understanding and open discussion of these core issues can the parties truly be able to ultimately put the past behind them and work together towards the mutual hope that lies in the future . . . even if that hope is simply that the dispute will end and you can put the litigation behind you.
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4. Mediation provides an opportunity to resolve disputes in much less time than required if the courts are used.
It takes a long time to get to court. It is not unusual for a contested case to remain on the court's docket for many months . . . sometimes years. Re-sets and continuances cause even greater frustration. Parties can wait for months for a court setting, prepare emotionally for their trial date "when, thank God, it will at long last all be over", only to learn at the last minute that the case will have to be heard another day because one of the attorneys is ill or the judge is tied up on another matter. Depending upon the anticipated length of your trial, it may take many months to set another hearing. Even then, you may very well encounter yet another delay at the next hearing date, which will only cause more frustration for all concerned.
The mediation process is much quicker than litigation. Sessions can be scheduled on much shorter notice. The mediation process itself takes less time than litigation. Finally, the chances of a postponement are far less with mediation than with litigation.
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5. Mediation reduces the risk of future discord and endless litigation.
No one likes to be forced to act against his or her will, and this is many times exactly what happens in a litigated dispute. Mediation on the other hand, provides the parties with a vehicle to work together to arrive at mutually agreeable decisions . . . decisions that will define their relationship for many years to come. In the final analysis, isn't it better to work together towards a "win-win" scenario than to abrogate your decision-making rights to a total stranger? |
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6. Mediation is private and confidential.
Under Texas law, anything said during mediation cannot be used in a court of law, except in the rare circumstance where the issues of child or elder abuse are raised. This gives the parties the opportunity to freely negotiate without the fear of having their statements or offers of settlement used against them at a later date should litigation becomes necessary.
An additional benefit provided by mediation is privacy. The parties decide who can and cannot be present at mediation sessions. Courts of law on the other hand, are open to the public.
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7. Mediation works.
Litigation can and many times does cause significant pain and anger, especially in the area of family law. It can become so hostile that the parties spend an inordinate amount of time posturing for their day in court. In the final analysis however, most parties come to the realization that their future and well being will be much better served by working towards a mutual agreement as opposed to submitting their dispute to a total stranger. That's why the vast majority of civil cases settle out of court . . . many through the use of mediation.
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